Citation Nr: 9935406
Decision Date: 12/21/99 Archive Date: 12/23/99
DOCKET NO. 98-11 162 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to an effective date prior to September 11, 1997,
for a grant of service connection for laryngeal carcinoma
with radical laryngectomy.
REPRESENTATION
Appellant represented by: James R. Wilson, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B. N. Booher, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a September 1997 rating decision of
the Department of Veterans' Affairs (VA) Regional Office in
Muskogee, Oklahoma (RO), which granted a 100 percent
evaluation with an effective date of September 11, 1997 for
the disability at issue. The veteran, who had active service
from August 1968 to August 1971, appealed the matter of the
effective date for service connection, and the case was
referred to the Board for appellate review.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. The veteran's initial claim for service connection for
laryngeal carcinoma with radical laryngectomy was received by
the RO on September 11, 1997, more than one year following
separation from service.
CONCLUSION OF LAW
The requirements for an effective date prior to September 11,
1997, for a grant of service connection for laryngeal
carcinoma with radical laryngectomy have not been met.
38 U.S.C.A. §§ 5107, 5110 (West 1991); 38 C.F.R. §§ 3.102,
3.400 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the veteran's claim is well
grounded within the meaning of 38 U.S.C.A. § 5107(a)(West
1991). That is, he has presented "a plausible claim, one
which is meritorious on its own or capable of
substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990). The Board is also satisfied that all relevant facts
have been properly developed and that no further assistance
to the veteran is required in order to comply with the duty
to assist mandated by 38 U.S.C.A. § 5107(a)(1991).
The veteran did not develop laryngeal cancer until many years
after his discharge from service. Post-service medical
records show that in March 1988 the veteran was hospitalized
and underwent laryngoscopy and laser excision of left
laryngeal ventricle lesion. In August 1991, the veteran was
hospitalized again and underwent a radical laryngectomy. A
claim for service connection for laryngeal carcinoma with
radical laryngectomy was received on September 11, 1997.
By rating decision dated September 1997, the veteran was
granted service connection for laryngeal cancer as a result
of Agent Orange exposure during his service in Vietnam. The
veteran contends that he should be granted an earlier
effective date for laryngeal carcinoma with radical
laryngectomy, back to the date of the initial diagnosis in
1988 or back to the date of the radical laryngectomy
performed on August 9, 1991.
The law provides that "[u]nless specifically provided
otherwise in this chapter, the effective date of an award
based on an original claim, a claim reopened after final
adjudication, or a claim for increase, of compensation,
dependency and indemnity compensation, or pension, shall be
fixed in accordance with the facts found, but shall not be
earlier than the date of receipt of application therefor."
38 U.S.C.A. § 5110(a) (West 1991). Further, "[t]he
effective date of an award of disability compensation to a
veteran shall be the day following the date of discharge or
release if application therefor is received within one year
from such date of discharge or release." 38 U.S.C.A.
§ 5110(b)(1) (West 1991). By regulation, the effective date
of an award of compensation based on an original claim will
be the date of receipt of the claim or the date entitlement
arose, whichever is later. See 38 C.F.R. § 3.400 (1999).
In this case, the veteran's application for service
connection dated September 4, 1997, was received by the RO on
September 11, 1997. Under the authority of the Agent Orange
Act of 1991, the VA published a final rule implementing a
decision of the Secretary of Veterans Affairs on June 9, 1994
establishing that there is a positive association between
exposure to herbicides used in the Republic of Vietnam during
the Vietnam era and the subsequent development of multiple
myeloma and respiratory cancers. This amendment established
presumptive service connection for multiple myeloma and
respiratory cancers. See 38 C.F.R. § 3.307(a)(6)(ii) and
38 C.F.R. § 3.309(e). Accordingly, pursuant to these
provisions, the RO granted service connection for the
veteran's laryngeal carcinoma, effective the date of the
veteran's claim.
During a May 1998 hearing held before the RO, the veteran and
his attorney argued that considerations of equity require the
grant of an earlier effective date for service connection,
back to August 9, 1991, for the veteran's laryngeal cancer
with radical laryngectomy. However, the evidence of record,
as well as the veteran's testimony during the May 1998
personal hearing make it clear that the veteran's original
claim for benefits was not received until September 11, 1997.
Further, there is no evidence or record of any earlier claim
or informal claim. Moreover, the effective date for the
change in the regulations governing presumptive service
connection for herbicide related diseases was June 9, 1994
and there is no provision allowing for the use of a date
prior to the date of receipt of the veteran's claim or for
retroactive application of the June 9, 1994 amendment. C.f.
Nehmer v. United States Veterans' Administration, 32 F. Supp.
2d 1175 (N.D. Cal. 1999); Nehmer v. United States Veterans'
Administration, 712 F. Supp. 1404 (N.D. Cal. 1989);
VAOPGCPREC 15-95, 60 Fed. Reg. 43187 (1995) (concerning
effective dates for service connection in Agent Orange claims
which had previously been denied). Therefore, under the
aforementioned provisions, the Board finds that September 11,
1997 is the correct effective date for the grant of service
connection for laryngeal cancer with radical laryngectomy.
While acknowledging that the veteran may have suffered from a
service-related disorder prior to that time, the Board
emphasizes that the veteran's entitlement to service
connection for that disorder could not arise until he filed a
claim for that benefit. See 38 U.S.C.A. § 5101(a); 38
C.F.R. § 3.151(a). Consequently, the Board finds that there
is no legal basis for an award of an earlier effective date
for the grant of service connection for laryngeal cancer with
radical laryngectomy, assessed as 100 percent disabling. As
the disposition of this claim is based on the law, and not on
the facts of the case, the claim must be denied based on a
lack of entitlement under the law. See Sabonis v. Brown, 6
Vet. App. 426, 430 (1994).
ORDER
An effective date prior to September 11, 1997 for a grant of
service connection for laryngeal cancer with radical
laryngectomy is denied.
RAYMOND F. FERNER
Acting Member, Board of Veterans' Appeals